2017 Report of the Economic Survey

AIPLA Report of the Economic Survey 2017

TYPICAL COSTS OF LITIGATION

Survey participants were asked to provide cost estimates, but only for the types of litigation they had personal knowledge of, either as a service provider (attorney in private practice) or as a purchaser (corporate counsel), and were engaged in recently . “Total cost” was requested, and includes outside legal and paralegal services, local counsel, associates, paralegals, travel and living expenses, fees and costs for court reporters, photocopies, courier services, exhibit preparation, analytical testing, expert witnesses, translators, surveys, jury advisors, and similar expenses. Participants were also asked to estimate based on a single IP asset (i.e., one patent at issue, one trademark, etc.). The following table reports median litigation costs for Patent Infringement, All Varieties, Patent Infringement Pursuant to the Hatch-Waxman Act, Patent Infringement by Non-Practicing Entity, Section 337 Patent Infringement Action in the International Trade Commission, Post-Grant Proceedings, Trademark Infringement, Trademark Opposition/Cancellation, Copyright Infringement, and Trade Secret Misappropriation. In this year’s survey, new categories (varieties) were created including initial case management; inclusive of discovery, motions, and claim construction; inclusive of pretrial, trial, post-trial, and appeal (when applicable); and the cost of mediation. In order to facilitate temporal comparisons of litigation costs to previous surveys, and in consultation with AIPLA staff, new varieties were matched up (when possible) with old varieties based mainly on the variety name. For example, Inclusive of discovery, motions, and claim construction was matched up with End of discovery, and Cost of mediation was matched up with Mediation. It should be noted that these comparisons are approximate given the differences in variety names, and thus caution should be exercised when making those comparisons.

M EDIAN L ITIGATION C OSTS

$000 S

2005

2007

2009

2011

2013

2015 2017

P ATENT I NFRINGEMENT , A LL V ARIETIES L ESS THAN $1M ILLION AT R ISK Initial case management

N/A

N/A

N/A

N/A

N/A

N/A

$25

Inclusive of discovery, motions, and claim construction (was End of discovery) Inclusive of pre and post-trial, and appeal when applicable (was Inclusive, all costs)

$350

$350

$350

$350

$350

$400 $250

$650

$600

$650

$650

$700

$600 $500

Cost of mediation (was Mediation)

N/A

N/A

N/A

N/A

N/A $100

$25

$1-$10M ILLION AT R ISK

Initial case management

N/A N/A

N/A N/A

N/A N/A

N/A

N/A

N/A

$60

Inclusive of discovery, motions, and claim construction (was End of discovery) Inclusive of pre and post-trial, and appeal when applicable (was Inclusive, all costs)

N/A $1,000

$950 $550

N/A

N/A

N/A

N/A $2,000 $2,000 $1,000

Cost of mediation (was Mediation)

N/A

N/A

N/A

N/A

N/A $200

$50

$10-$25M ILLION AT R ISK

Initial case management

N/A N/A

N/A N/A

N/A N/A

N/A

N/A

N/A $100

Inclusive of discovery, motions, and claim construction (was End of discovery) Inclusive of pre and post-trial, and appeal when applicable (was Inclusive, all costs)

N/A $2,000 $1,900 $1,000

N/A

N/A

N/A

N/A $3,325 $3,100 $2,000

Cost of mediation (was Mediation)

N/A

N/A

N/A

N/A

N/A $250

$75

M ORE THAN $25M ILLION AT R ISK Initial case management

N/A

N/A

N/A

N/A

N/A

N/A $138

$3,000

$3,000

$3,000

$3,000

$3,000 $3,000 $1,700

Inclusive of discovery, motions, and claim construction (was End of discovery) Inclusive of pre and post-trial, and appeal when applicable (was Inclusive, all costs)

$4,500

$5,000

$5,500

$5,000

$5,500 $5,000 $3,000

Cost of mediation (was Mediation)

N/A

N/A

N/A

N/A

N/A $300 $100

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